Some of Hollywood’s most entertaining stories are also the most misleading. This blog will explore legal scenarios from a few of our favorite movies and tell you what would happen if they took place in real life. Grab your popcorn.Continue reading
In last month’s blog, we explored the meaning and significance of estate planning, which is the process of designating who will receive a person’s assets in the event of their death and who will care for a person in the event of their incapacitation. Estate planning is an important task we encourage all of our clients to consider.
A proper estate plan will include multiple documents, which we break into two parts. This blog will dive deeper into Part 2.
- Part I Planning for Incapacitation
Documents to designate individuals who will make decisions for you while you are alive but unable to make your own decisions.
- Durable Power of Attorney
- Healthcare Surrogate
- Living Will
- Learn about these in detail in our previous blog, Your Guide to a Comprehensive Estate Plan Part 1- Planning for Incapacitation.
- Part II Planning for Death
Documents that provide instructions on how to distribute your property upon your death.
- Last Will and Testament
- Deeds, beneficiary designations, and other documents that permit you to distribute property upon your death.
Every legal process is different, and seeking the services of competent estate planning attorneys can simplify the process and save you time and money. The attorneys at McCart & Tesmer practice in the areas of probate, estate planning, and family law. Contact us if you have questions or are ready to have our attorneys work on your legal matter.
Phase 2 Documents
In Florida, a Last Will and Testament is a written document that directs who will receive property and assets upon your death. It also allows you to choose the guardian of a minor child should both parents die while the child is under age 18.
A Last Will and Testament is an essential document for all individuals, even if you have no children and do not own real estate. Without a Last Will and Testament (or another plan, such as a living trust), your estate would be considered “intestate,” which means that the State of Florida dictates how the property will be distributed. Don’t confuse this with the notion that the State of Florida will take all of your property; instead, the State of Florida law dictates the order and hierarchy of how your property is distributed to your relatives, such as spouse, children, parents, which may include relatives you would instead not inherit from you.
One of the most important decisions you will make for your estate plan is who you choose as the administrator or personal representative of your will. The personal representative, also known as an executor in other states, is the individual or corporation who will carry out the provisions of your Will. This administrator should be someone you trust, who is financially responsible, and willing to serve. We always advise speaking with this individual or corporation before nominating them as Personal Representative or executing your will.
Some questions to answer before you begin drafting your Last Will and Testament:
- Which trusted adult can and will take care of your minor children?
- Who do you want to get your property to?
- Will your beneficiaries be treated equally?
- Are there any beneficiaries (or potential beneficiaries) that will be minor or need their money to be managed for some time?
- Are there charitable organizations you want to support?
- Are your pets provided for?
- Do you have everyone’s legal names?
- Do you have specific instructions regarding your remains, such as buried or cremated?
Thanks to Florida lawmakers, anyone can write a will on a piece of scratch paper or create one online and have it considered legal and valid in the state. However, these DIY Last Will and Testaments rarely protect the decedent and the beneficiaries in the way the drafter intended. Even if this is your chosen route, we still say It’s best to have an estate planning attorney help you. Call us at 813-498-2757 for a free consultation.
The four main types of trusts are living, testamentary, revocable, and irrevocable. However, there are further subcategories with various terms and potential benefits.
- Testamentary Trust: This type of trust is set up after death according to your Last Will and Testament. Since the terms of a testamentary trust are established in your Will, and you can change the terms at any time up until your death, this trust can be simpler and more flexible than a living trust, but it will require court intervention (i.e., probate) after your death.
- Revocable or Living Trust: Created while you are still alive to efficiently transfer assets to beneficiaries. A revocable or living trust accomplishes by avoiding probate, the court proceedings for distributing assets after death. Avoiding probate can save time and court fees and potentially reduce estate taxes for beneficiaries.
- Irrevocable Trust: Unlike the revocable trust, no one can alter the terms of an irrevocable trust after it is created. The primary purpose of an irrevocable trust is so you can transfer assets out of your taxable estate. Income from the assets transferred into the trust is no longer taxable to the benefactor during their lifetime. The assets are not taxable to the estate upon the benefactor’s death.
Florida trust laws state that a trust is created only if:
- The settlor has the capacity to create trust.
- The settlor indicates an intent to create the trust.
- The trust has a definite beneficiary or is a charitable trust, a trust for the care of an animal, or a trust for a noncharitable purpose.
One of the main benefits of having a trust is that property contained within the trust does not have to go through probate, instead passing directly to beneficiaries. This c n mean savings of both time and money for your loved ones.
Our attorneys can help you find the best plan to suit your needs. Give us a call at 813-498-2757 for a free consultation.
3. Deeds Other Documents That Permit Distribution of Property Upon Death
One of the main objectives of any comprehensive estate plan is efficiency and allowing your loved ones to start benefiting from your assets with minimal delay or added expense. There are several ways one can achieve this, such as:
- Joint Ownership of Tangible Property – Joint owners on bank accounts, vehicles, or vehicles using the term “or” between owners. This allows the surviving owner to keep the property after a co-owner passes away.
- Joint Ownership of Real Property and Deeds – By adding particular language to your deed, you can add a co-owner or beneficiary to your property. To acc plish this, we frequently use the following deed designations:
- Joint Tenants with Right of Survivorship
- Tenancy by the Entirety (for spouses only)
- Life Estate Deeds (also known as Lady Bird Deeds)
- Beneficiary Designations, Payable on Death, or Transfer on Death – You can leave property to loved ones if there are beneficiaries. If there is no beneficiary, you may be able to convert the account to a Payable on Death or Transfer of Death account, allowing you to add a beneficiary to the account. This is often utilized at banks and credit unions.
No two people are alike, and no two estate plans should be either. With the proper documents in place, property ownership will automatically pass to your beneficiaries when you pass. Are your assets secure? Is your family protected?
If you are considering creating or amending your will, trust, or any of the estate planning documents we’ve covered, McCart & Tesmer can help. Our expert attorneys will ensure you choose the proper documents for your family. Contact us at 813-498-2757 or info@McCartTesmer.com for a free consultation.
To the average person, the term “probate,” and its process is a complete mystery. When asked what probate is, a non-lawyer may be able to explain probate is a legal process that takes place after someone dies – but chances are not much more is known than that. In this month’s blog, we break down the definition of probate and discuss the probate process in Florida.
The following is a brief list of the most common terms found and used throughout the probate process:
- Probate – The process of collecting a decedent’s assets to pay off debts and distribute assets to their heirs. In Florida, that process is governed by the circuit courts, and, in most counties, one judge is appointed to handle all probate matters.
- Decedent – A deceased individual.
- Intestate – When a person dies without a valid last will and testament, the State of Florida declares the property of the deceased “intestate.” Intestate probate is distributed according to Florida’s prescribed order and hierarchy of beneficiaries.
- Probate Court – Used to describe the court where the probate matter is administered.
- Personal Representative (PR) – A person or entity legally appointed to oversee the distribution of assets from a deceased person’s estate. This term is synonymous with the term “Executor” but Florida uses the term Personal Representative.
- Beneficiary/Beneficiaries – An individual or group named in a testamentary document, such as a last will and testament, to receive a portion of the decedent’s assets.
- Notice of Administration – A written notice mailed to beneficiaries and other interested parties by the Personal Representative letting the recipients know that a probate was opened. A Notice of Administration is required in Florida and provides specific details on the probate proceedings, such as the case number and court where the probate is pending, and any deadlines to object to the probate and Personal Representative.
- Probate Litigation – Describes a legal dispute during the probate process. The most common types of probate disputes during a probate include challenges to wills/trusts, legal disputes over guardianship, and challenging or requesting the removal of a personal representative.
Typically, probate begins shortly after a decedent’s death by filing the decedent’s last will and testament (or “Will”) with the circuit court clerk in the county where the decedent resided. In some cases, a probate may be in a county where the decedent owned real estate.
In the absence of a valid Will, the State of Florida will declare the estate is “intestate.” Florida has a specific process for determining who receives the decedent’s assets, the entirety of which can be found in Chapter 732 of The Florida Statutes. In instances with no Will, the Court will determine the rightful heirs and who should serve as Personal Representative (PR) based on state law. If the initial documents filed are in proper form, the Court will issue Letters of Administration as proof that the PR is empowered to act on behalf of the estate.
Once qualified, the PR then begins the process of gathering the assets of the estate. The PR is responsible for collecting and managing probate assets, which are those assets that pass to heirs under the terms of the decedent’s Will or by the law of intestate succession if there is no will. The PR is responsible for determining which assets are “probate assets” and which assets were “non-probate assets”. Probate assets must go through the probate process while non-probate assets do not.
Non-probate assets are those which pass to others by means other than a will or intestate succession. These assets pass directly at the decedent’s death, are not held up in the probate process, and are not subject to paying off debts. Examples include:
- Jointly titled assets that pass to surviving owners.
- Beneficiaries of individual retirement accounts, life insurance policies, or other assets that permit a beneficiary designation.
- Heirs of trusts who hold title to a decedent’s assets before death.
After gathering assets, the Personal Representative must notify creditors by mail and publish the deadline for filing claims against the estate to pay the decedent’s debts. If claims are not filed promptly, they will be barred, meaning the creditor does not get paid. The Personal Representative has 30 days after a claim is filed to object to the claim. If no timely objection is filed, the PR must pay the claim using estate funds. If the PR objects to the claim, the creditor has another 30 days to file suit to have the court decide the claim’s validity. If the creditor’s suit is not filed in a timely fashion, it will be barred and the creditor does not get paid.
In Florida, most beneficiaries are free of inheritance tax, but there are exceptions. Under current law, an estate will not pay estate taxes unless the value of its assets exceeds $12,000,000. However, even if no estate tax is due, the Personal Representative must file the decedent’s final income tax return, covering the year of the decedent’s death from January 1st through the date of death. The decedent is further required to file an income tax return for the estate (form 1041) before the estate is closed, for any year its income exceeds $600.
After all creditor claims are paid or resolved, the PR must distribute the remaining assets to the heirs. To do so, the PR may be required to close accounts to convert them to cash, sell other assets if the Will directs, or execute deeds to transfer real estate titles to heirs. In addition, the PR must file a final accounting with the court, showing which assets came into the hands of the PR, which debts and expenses were paid, and what bequests were distributed. The PR also must file a petition with the court to close the estate and discharge the PR from further service. If the court finds everything in order, it will issue an order to close the estate, at which time the process is finished.
The probate process typically takes a minimum of 6 months but can take over twelve months, although the timeframe may vary in some cases. Every legal process is different, and seeking the services of competent estate planning attorneys can simplify the process and save you time and money. At McCart & Tesmer, our mission is to serve as Tampa Bay’s leader in Marital Law, Family Law, Estate Planning, and Probate. If you are in the probate process and need help sorting out assets, give us a call for a free consultation today – 813-498-2757.
Today, we break down the legal term “protective injunction” and the scenarios in which they can be obtained. A protective injunction is a court order requiring a person to do or cease doing a specific action. The terms protective injunction, restraining order, and protective order are all essentially synonymous and interchangeable in Florida.
A defamation trial involving formerly married actors Johnny Depp and Amber Heard just concluded and has raised public awareness of domestic violence. High-profile cases like these may lead to tangible policy change, as the O.J. Simpson case helped shape the 1994 Violence Against Women Act. Perhaps Depp v. Heard will be the next?
Under Florida law, a victim can file a petition seeking a protective injunction for one of the following alleged conduct:
Types of petitions:
Florida Supreme Court has approved forms for victims to obtain the necessary injunction.
Steps for getting an injunction for protection against domestic violence:
- Go to the courthouse and get the necessary forms.
- Fill out the forms.
- The Victim must complete and file the petition and necessary forms.
- An attorney may be retained to attend the hearing with the victim after filing.
- Make a copy of the forms.
- File your case with the county court where the alleged conduct occurred.
- A judge reviews your petition.
- A judge can outright deny the petition if the facts alleged in the petition do not meet the statutory threshold.
- A judge can grant a temporary injunction for up to 14 days (effective when the temporary injunction is served on the Respondent). A return hearing will be scheduled to determine whether the injunction should be dissolved or made permanent for a specified amount of time. Both the parties must attend this hearing. Failure of the petitioner to appear will likely result in the judge dissolving and dismissing the temporary injunction. Failure of the Respondent to appear could result in the petition being granted or a continuance if the Petitioner requests the same.
- Service of process.
- The injunction is not enforceable until it is served on the Respondent (the alleged perpetrator)
- The sheriff’s office will serve, so have the alleged perpetrator’s complete physical description, home address, and work address on your petition.
Download Florida Court Forms: https://www.womenslaw.org/laws/fl/preparing-court/download-court-forms
Checklist for litigants seeking a protective injunction:
Fees & Service
There is no fee for filing a protective injunction relating to domestic, stalking, repeat, dating, or sexual violence petition.
Places That Help
- Florida State Resources:
- Florida Domestic Violence Hotline: 1-800-500-1119.
- Advocates and Shelters
Contact information for non-profit programs and domestic violence shelters where you can find advocates who provide support, safety planning, court accompaniment, and more.
- Courthouse Locations
Contact information for civil courthouses.
- Sheriff Departments
Contact information for sheriff departments, which, in most states, serve protection orders.
- Florida Domestic Violence Hotline: 1-800-500-1119.
- Local Domestic Violence Resources in Tampa Bay:
- Mary and Martha House – https://marymarthahouse.org/
- The Spring of Tampa Bay – www.thespring.org
- Florida Coalition Against Domestic Violence – www.fcadv.org
- Family Justice Center Hillsborough County – www.fjchc.org
- RU Safe Hillsborough County – www.r-u-safe.org
- Hands Across the Bay- www.handsacrossthebay.org
- Crisis Center of Tampa Bay – www.crisiscenter.com
- CASA St. Petersburg – www.casa-stpete.org
- The Haven of RCS Pinellas County – www.rcspinellas.org
- Domestic Abuse Shelter, Inc. – www.domesticabuseshelter.org
- Bay Area Legal Services – www.bals.org
- Peace River Center Polk County – www.peace-river.com
- Sunrise of Pasco County – www.sunrisepasco.org
- Help Now of Osceola, Inc. – www.helpnowshelter.org
- Haven of Lake and Sumter Counties – www.havenlakesumter.org
- Lighthouse Ministries – www.lighthousemin.org
- Legal Support From McCart & Tesmer:
- If you have filed an injunction and need representation at a hearing, we can help.
If you believe a protective injunction has been improperly filed against you, you may have legal grounds to have it dissolved or to challenge the court’s ruling through an appeals process. Contact us or call us at 813-498-2757 for a free consultation.
There are many reasons a person may seek a name change – marriage, divorce, or simply a dislike for their current one! This blog will walk you through the most common cases and introduce you to the name change process. The attorneys at McCart & Tesmer assist clients with the name change process; get in touch with us if you have questions about legal name changes in Florida.
Top Reasons For Name Changes:
- Marriage or Divorce –
There are several paths to take when it comes to name change after marriage,
- Taking your spouse’s surname.
- Hyphenating your surnames.
- Creating a new last name for one or both of you.
- Taking your spouse’s name legally, but keep your given name professionally.
- Taking your spouse’s last name and making your given name your middle name.
Similar options exist when finalizing a divorce. Some individuals choose to return to their given surnames, while others prefer to keep their married name to be the same as their children’s.
- Changing Child’s Surname to Mother’s, Father’s, or Stepparent’s –
Various life circumstances can warrant a name change for a child, such as being adopted by a relative or step-parent or a parent getting married.
While a child’s biological parent, adoptive parent, or legal guardian may ask the court for a name change, all other legal parents or guardians must give written permission, known as consent.
- Correcting a Birth Certificate –
Errors or omissions can occur on a birth certificate, particularly if the birth certificate was hand-written. Frequent errors that occur include misspelling of a name, missing or extra space in a name or an incorrect maiden name for the mother. If the child’s birth certificate was just issued (Florida law requires a birth certificate to be filed within five days of birth with the local registrar), the correct can be quickly caught and made. However, after this period of time, a court order permitting the corrective birth must be obtained.
- Name Changes for Transgender and Gender Non-Conforming Individuals –
Because a person’s name follows them everywhere, people want to feel comfortable with theirs. Often transgender individuals choose to change their first name to one that best aligns with their gender identity.
- Aspiration, Spiritual, Religious –
Some individuals desire to change their name to reflect their beliefs, vocation, or experiences, or to honor their heritage by taking a lost family name.
- Dislike of Current Name –
One of the top reasons people change their name is simply because they dislike it. Whether a person prefers to go by their nickname, middle name, or a different name altogether, legally changing one’s name to the one they prefer is a valid and legal reason.
- Simplify –
- Spelling or Pronunciation – A name change can eliminate hard to pronounce or hard to spell names.
- Length of Name- A long first name and second name may not fit on government ID’s (really, it’s happened!)
- Uniformity of ID – Over time, many people adopt name variations, which can cause problems in official records. Some choose to change their name so that it appears the same on all of their important documents (passport, driver’s license, social security card, military ID, birth certificate, etc.).
- To Match Their Children’s – Single parents can especially experience difficulty accessing school or medical services if their names do not match.
- Branding or to Stand Out From The Crowd –
Some individuals choose to change their name for notoriety, whether brand recognition or to entertain and/or shock people.
Entertainers often adopt a stage name and want to make it legal at some point. The same can be true for business professionals who have gained a certain notoriety.
One of our favorite stories of stand-out name change is that of Daniel Knox-Hewson. Hewson, a 23-year-old from the UK, legally changed his name to “Emperor Spiderman Gandalf Wolverine Skywalker Optimus Prime Goku Sonic Xavier Ryu Cloud Superman Heman Batman Thrash.” How is that for distinctive?
Florida Name Change Requirements:
- Complete a ‘Petition for Change of Name’ (Minors, Adult, or Family).
- Get fingerprinted for a criminal history background check.
- File the completed petition with the clerk of court and pay the filing fee of $401 (subject to change without notice).
- Once your application has been accepted and your filing fee paid, the clerk will set your hearing date. Hearing dates vary significantly between counties. This may be scheduled within days, weeks, or as long as six months away.
- Ask for at least 2-3 certified copies of your name change order so you can change your records with various organizations without waiting for your only certificate to be returned.
No matter the reason, legally changing your name can be complicated, and the requirements vary case-to-case. Once your name change is finalized, you will have additional steps to take, such as getting a new social security card, contacting account holders to change your name, etc. The attorneys at McCart & Tesmer are here to help. For a consultation to discuss your matter, please call (813) 498-2757 or email info@McCartTesmer.com.
“…In this world, nothing can be said to be certain, except death and taxes.” Benjamin Franklin. Even though Benjamin Franklin’s infamous quote is over 200 years old, the sentiment still rings true today.
Taxes are inevitable and complicated. Add a divorce into the equation and tax season may become even more complicated.
The first tax season after informally parting ways or legally divorcing can be confusing and full of unknowns. As the tax filing deadline grows closer, questions may arise such as:
“Were there changes to federal tax law that could affect my family?”
“Is alimony deductible?”
“Who can claim the children on their taxes?”
“Can we split the mortgage interest deduction?”
The first place to start to answer these questions and any other questions is to seek out a Certified Public Accountant (also known as a “CPA”). A CPA can take a look at your personal finances and any agreements between the parties to determine which filing status is most beneficial to you. In order to prepare for the meeting with your CPA, we suggest preparing to answer or ask the following questions:
- If I’m recently separated, what is my filing status?
Your marital status on the last day of the tax year determines your filing status. If your marriage has not been legally dissolved by December 31st of the tax reporting year, you are technically still married and should file as such.
- My partner and I live together, do we have the same rights as married couples? Can we file jointly?
Unfortunately, no. Only a married couple can file a joint return. The IRS considers cohabiting couples “single” individuals.
- If we are unmarried, who claims the children?
If your divorce agreement does not specify who claims the children, then unmarried couples can choose who may claim each child. However, they can not claim the same child. If you have joint custody, the parent who has the child the greatest number of days during the tax year gets to claim the child as a dependent. If you do not yet have a Parenting Plan (also called a custody agreement) in place, click here to get a free template or contact our office for a consultation. It is possible to come to an agreement where you will alternate years you claim a child. If you are alternating years you claim a child make sure you complete IRS form 8332- Release/Revocation of Release of claim to Exemption for Child by Custodial Parent. This document allows a custodial parent to pass the tax exemption for a dependent child to the noncustodial parent. You can find this form at https://www.irs.gov/pub/irs-pdf/f8332.pdf .
- Who can claim Advance Child Tax Credit Payments in 2021?
While exemptions for dependents ended in 2018, whoever qualifies to claim the child will also potentially qualify for benefits, including: head of household filings status, the $2,000 child tax credit, the $500 non-child tax credit, the credit for child and dependent care expenses, and the earned income tax credit – totaling thousands of dollars in potential tax breaks. Under the American Rescue Plan of 2021, advance payments of up to half the 2021 Child Tax Credit were sent to eligible taxpayers. If you received advance payments, you can claim the rest of your credit, if eligible, when you file your 2021 tax return. Child Tax Credit is based on whoever claimed the child in the previous filing.
- Is child support deductible?
No. Child support payments are neither deductible by the payer nor taxable to the recipient. This means that when you calculate your gross income to see if you must file a tax return, you do not include child support payments received.
- Is alimony (spousal support) deductible?
Not anymore! Beginning January 2019, alimony or separate maintenance payments are not deductible from the income of the payer spouse or includable in the income of the receiving spouse if made under a divorce or separation agreement executed after December 31, 2018.
- Is my property settlement (or property transfer pursuant to a dissolution of marriage) taxable?
If your property settlement or property transfer is pursuant to a divorce decree, it is not taxable.
Get a head start for the 2022 tax season
Are you looking to get organized for the 2022 taxes season?
Did you know that charitable donations not only contribute to the greater good but can actually lower your tax liability? These donations (of either money or goods) may be deductible!
Here are some of our favorite charities that give back in a big way!
- Trevor Project- The Trevor Project is the world’s largest suicide prevention and crisis intervention organization for LGBTQ. Together, as a community, we can support those nationwide and help people know they are not alone!
- Feeding Tampa Bay- This non-profit is leading the movement to end hunger, rallying our community together to create a healthier, more capable Tampa Bay and beyond
- Grow Into You Foundation- Show your support by helping foster teens receive mentoring and coaching to give them inspiration and direction!
- Ukraine Humanitarian Relief- As the crisis in Ukraine unfolds, donations can make a huge impact in creating relief and recovery efforts for those in Ukraine and neighboring areas.
Click here for a comprehensive guide to charitable contribution deductions.
The attorneys at McCart and Tesmer can help you sort the many complexities of your family’s restructuring, from child support and everything in between. We can help you find ways to ease the discomfort by providing the knowledge and tools necessary for your journey. Visit our website to learn more about our services or call today to set up your free consultation: 813-498-2757.
It may have seemed like a great idea to purchase sought-after season tickets or coveted end-of-season game tickets with your spouse, but it can get complicated if the marriage goes south before the big game. With the Super Bowl in our rearview for 2022, it makes you think: how would you split a single Super Bowl or World Series ticket in a divorce?
In our experience, one of the hardest parts of a divorce is dividing property. Florida is an equitable distribution state. This means that in a divorce, the initial presumption is a 50/50 split. While Florida courts shoot for “equitable distribution,” one party may not necessarily receive an equal share. Because there are thousands of scenarios and situations that determine a fair split, there are many rules applied to provide the fairest possible division. When an asset cannot be divided in half and shared by both, the outed spouse may receive a different asset or compensation in exchange.
This, of course, can be a painful and difficult process that can sometimes turn hostile. You think we’re kidding, but it’s true! There is the case of the divorced couple who had a feud over their season tickets to the world series in 2016. The couple were big Chicago Cubs fans and it had been 71 years since they had made it to the world series. They purchased the tickets before the divorce and now both of them want to be the parent to bring their 12-year-old son to the game. The courts got involved and it got messy. The judge decided that the husband could keep the tickets only if he agreed to also purchase another ticket, somewhere else in the stadium, for his soon-to-be ex-wife at a comparable cost, which at the time was over $3,000. Talk about an awkward game!
While this is an extreme case, you can see why it is valuable to understand the classifications of marital property in Florida. These categories also apply to all debt incurred before or during the marriage.
Marital Property: Includes any property acquired during the marriage, our ticket dilemma would fit into this category. Vehicles, homes, and even vacations are considered marital property if they were obtained during the marriage. In Florida, these assets are equally split between the spouses in a divorce.
Separate (Non-Martial) Property: Includes any property acquired prior to the marriage, inheritances, and gifts. In Florida, this type of property is not subject to division unless it is converted to marital property during the marriage (a premarital agreement can prevent this from happening).
So how can you best prepare for dividing your property? We have 2 main tips to get you started.
- Prioritize – It is vital to take stock of assets acquired during the marriage and how they were used to decide what is worth fighting for. There may be items that do not mean much to you, like that ratty set of camping chairs, and also items that have deep meaning to you, like a Super Bowl Ticket. These things should be discussed right away so that the process can move forward.
- Be Honest – Even though hard feelings are felt by both parties during a divorce, it is never a good idea to withhold information or downright lie about property. Not only can the courts punish active deception like this, without total honesty, your lawyer cannot do their part in protecting and fighting for you.
Divorce is never easy, but there are ways to prepare yourself for the road ahead. If you are in the divorce process and need help sorting out the division of marital assets, the law office of McCart and Tesmer is here for you. Give us a call for a free consultation today – 813-498-2757
We can all agree that raising a child is not simple or easy in any way. Parenting comes with many tough decisions of varying degrees. One of the most challenging decisions as a parent is choosing guardians should care for and raise your minor child if you cannot.
Often parents designate a caregiver in their Last Will and Testament, which asks that a judge appoint the nominee as a legal guardian of the child. When choosing an appropriate guardian, we suggest considering the following:
- Two Guardians or One – When choosing a guardian for your child, you are actually determining two guardians: the guardian of person and guardian of property. Your nominee can be both the guardian of person and property or there can be two separate guardians. A guardian of the person is responsible for managing the day-to-day tasks a typical parent completes such as the child’s medical, educational, and residential decisions; your child will likely live with this person. The guardian of the property is responsible for managing the child’s property and money. For example, if your child receives inheritance from a probate or social security death benefits from your passing. The guardian of property will pay or reimburse the guardian of person for expenses unique to your child such as orthodontics, tutoring, or necessary medical procedures. It is often helpful to have the same person be both the guardian of person and property; however, some parents choose a person from each parent’s family to ensure the families keep working together and keep both families involved in the child’s life.
- The less disruptive, the better- The first consideration in nominating a guardian, is determining what scenario and who is the least disruptive option for a guardian. Your death will be a massive disruption to your child so the greatest post-mortem gift to provide your child is to minimize the disruption and transition that occurs immediately after you are gone. When choosing a guardian, consider the following: (1) how far your child would need to relocate to live with the guardian, (2) what school they will attend, (3) do you want your child to remain in your home and will the guardian be willing to move (4) does your guardian have children whose lives will also be impacted should your guardian move. Determining and writing down your child’s needs and your desires to provide the least disruptive option will weigh the considerations which are important to you and disqualify potential guardians who do not align with your goals and needs.
- Age of the Child and Guardian- Different ages require different approaches to parenting. For example, a teenager may be more independent and have a preference where they would want to live if something happens to you. Having your child join in the conversation may bring comfort to them, knowing that they have a say in the matter and will be taken care of by a trusted family member or friend. A toddler may require a more hands-on guardian who will likely be able to care for at least 10 to 15 more years. Will this potential guardian be able to keep up with the high demands of homework, carpools, and kids’ activities of younger children? As children grow, so do their social networks and obligations. Having a guardian who will keep pace with these demands is essential to think about.
- Talk it out and write it down- The best practice when it comes to choosing a guardian for your minor child is to plan ahead and years down the road. Have those tough conversations now and have those conversations with your potential guardians. Will your guardian be willing and able to step in? How old will your guardians be in 5 years, 10 years, or even 15 years? Do the guardians understand the potential responsibility. Do not make your efforts futile by choosing a guardian who does not want to or cannot take over. Once you have a guardian(s) selected and approved, write it down. Once you have their approval, be sure to reduce it to writing. Contact your estate planning attorney to update or draft your Last Will and Testament to reflect your newly chosen guardian.
- What resources are available- There will be a cost associated with raising your child which may fall on your guardian of person if social security death benefits are insufficient to cover costs. You can provide for any inheritance, including life insurance, retirement accounts, and real estate, be made available to cover any deficiency between benefits received and the expenses of your child. You will want to consider if your child and the guardian remain in your residence, will there be resources available to continue paying for the mortgage or rent? Should the house be paid in full first to free up resources for other items like groceries, clothes, and extracurricular activities? With a properly drafted estate plan, you can plan ahead with the resources you intend to have to maximize the funds available for your child and minimize any financial burden on your guardian of person.
- Consider a backup Guardian- There is always the chance that the guardian cannot fulfill their obligations as your child’s guardian. In this case, you should consider selecting a backup individual to step in if necessary. This guarantees that even if your initial plan falls apart, your child will still be taken care of by a responsible party of your choosing.
Your death will undoubtedly create an emotional hardship on your child, particularly if your child is a minor. Our time with our children is not promised but we can promise that we have properly planned for a “Plan B” if our “Plan A” is disrupted. At McCart & Tesmer, we are ready, willing, and able to help you make your “Plan B” to give you assurance and comfort knowing your child will always be well-cared for.
Having children and growing your family is not always what the cinema makes it out to be. It is not always romantic, and it certainly does not run as smoothly as it may be portrayed. While it can be incredible, it can also be messy – and let’s admit it, life can be messy. But while it is definitely a blessing to have children, and quite honestly the biggest adventure of your life, the act of having children can be… well, a little interesting.
Regardless of your relationship status (complicated marriage, unmarried, or basically a relationship built on a crazy night out with the man you swiped right on the night before) there are several legal factors that go into what determines the paternity of your child and the legal rights of the father. Before we get down to the nitty-gritty, let’s touch on what paternity actually means.
According to the Merriam-Webster dictionary, paternity is “the quality or state of being a father.” A paternity action is the legal proceeding that establishes the rights and obligations of the child’s father. These proceedings determine the legality of the father on a state level. This legal acknowledgment of paternity can potentially help you (the mother) petition for child support.
That’s correct, ladies! This blog is all about who is legally recognized by the state of Florida as the father of your child. Now, we understand that you are probably thinking that the father of your child must be who you had relations (ahem… sex) with. Correct? Well that is not entirely true.
Determining The Father
Determining the paternity of the father can be broken down into two categories. The first, according to the state of Florida, is determined by if a woman gives birth and is married. This means that the legal father of a child is her husband. The second category of paternity is determined by going to court and petitioning to establish paternity with the state. But what happens when you are not married or had a child with someone other than your husband? Ooops! That got complicated…
Let’s start with the basics. In many states, including Florida, there are two types of paternity – legal and biological. That’s it, folks! That’s the tea. Let’s dive in.
For the most part, a biological father is pretty self-explanatory. The biological father is the man whose DNA is shared with the child. In the state of Florida, unless you are unmarried at the time of birth, there is no further action required. When married and giving birth, at least here in beautiful sun-kissed Florida, the biological father has shared rights with the mother, even if they divorce after giving birth.
This is where it gets cute. IF you are unmarried from the biological father at the time of birth, the state will NOT recognize them as a legal guardian of your child. Even though there is shared DNA, the State of Florida still requires you to petition for paternity. According to Florida statutes, the biological father can petition for paternity anytime between birth through the child’s 18th birthday. These petitions of paternity are typically determined through a genetics test.
With that, if you are unmarried and have an amicable relationship, the earlier you petition for paternity, the easier the process will be.
In the state of Florida, the legal father of a child is recognized as the person who is legally responsible for the child. This person can be the biological father, an adoptive father, or even a close friend. Realistically, it can be anyone that the courts deem as the “legal” father.
This specific father has the same rights as the mother regarding custody, how the child is raised, time-sharing, and much more. In the case of divorce, regardless of whether the legal father is biological or not, you should still prepare for a custody battle because the state of Florida will see them as a legal party.
In either category, you will need to take the appropriate steps to establish the legality of your specific paternity case. People often assume that the name listed on the birth certificate at the time of birth is the legal paternal father. Unfortunately, that is not the case. During a petition for paternity, the courts will and can overturn the birth certificate. Yikes!
Rights of the Mother
Just like any other family law case, both parties involved have a path to maneuver. If you are a single mother or your child was born out of wedlock, you automatically have full rights and custody of your child. The state of Florida tends to lean on the side of the mother, and in any court case, this gives you the upper hand. However, if you are not capable of taking care of the child on your own the Florida Department of Revenue can issue a court order to petition for paternity – especially if a mother requests government assistance.
On the flip side, if the father denies paternity, won’t sign the appropriate affidavit, or ceases communication with the mother, the mother still has options. And we like options… The mother in turn may file a court action to establish paternity. If the father does not comply, he may risk being held in contempt of court. This can lead to high fines and potential criminal charges. Once the court adjudicates the father’s paternity, the mother is entitled to retroactive child support in Florida.
Why is Establishing Paternity Important?
Establishing paternity helps you and your child navigate the intricacies of life a little easier. From child support to medical history, having an understanding of who the legal father is can help all parties. Here’s how:
- Financial – If you are a single mom, it can be hard to plan for your child financially. With a legal settlement with the legal father, you will be able to collect child support.
- Inheritance – If the legal father passes away, your child will have the opportunity to collect their benefits like social security, disability, Veteran’s benefits, and life insurance.
- Medical – Establishing paternity of the biological father can help your child understand their medical history from both sides.
- Insurance – If the legal father can pay for health insurance, the child would be able to receive coverage through either parent.
- Identity – Representation and self-identity are essential. Allowing your child to know their legal father helps them have a better understanding of themself.
- Relationships – No matter your feelings towards the father, your child has the right to build and establish a healthy relationship with the other parent.
That was a lot, and we barely touched the surface. Navigating through paternity cases can be as straightforward or as complicated as either party makes it. There may be further complications if other variables are involved, like sperm donors or an attempt to disestablish their paternity. Don’t you worry, we’ll cover those situations a different day!
Hiring competent and trustworthy lawyers that possess a little flare and a little sass is critical to any family law case. For over fourteen years, Kristi McCart and Laurel Tesmer have served the Riverview, FL, and surrounding Tampa Bay areas in Marital and Family Law. If you are seeking representation and want honest answers as a team who will fight for you, you’ve come to the right place.
Give McCart & Tesmer a call today at (813) 498-2757 or click here to drop a line and schedule your free legal consultation today.
Now go forth and be wild… but not too wild because you know, paternity!
Listen, we know. You probably want to talk about green bean casserole, pumpkins, and sugar plums. Maybe even the big guy in the red coat—we certainly do! But before we get knee-deep in decor and side dishes, it is time to get serious about planning for timesharing for the holiday season. Who gets Turkey Day? Is Santa still real this year? Who will be making cookies on Christmas Eve? All of the questions and more need to be discussed now. If you wait too long, there may be a brawl over which grandma gets to cook for the kids on Thanksgiving.
At McCart and Tesmer, we have a great deal of experience in Family Law. We deeply understand the difficulties of navigating the holidays with someone with whom you have divorced or separated. Trust us; it can be done! The amount of friction during the process has everything to do with considering and planning into the holiday seasons ahead of time.
- Review Your Parenting Agreement. Assuming you already have a Parenting Plan in place, review your Parenting Plan by the beginning of November. If you have not sat down to review your Parenting Plan since the beginning of school, that is okay, but it is time to take another look. Consider upcoming travel (especially out-of-state and international) and the dates of school breaks that are coming up. Now is the perfect time for both parties to make adjustments for future holiday timesharing (maybe with the help of some highly qualified, seasoned lawyers like us). This way you can avoid scheduling conflicts for the upcoming holidays. It is important to prepare your child in the timesharing plan as early as possible. It will give them a great deal of ease to know the plan ahead of time. If you do not yet have a Parenting Plan in place, click here to get a free template or contact our office for a consultation.
- Consider Sharing The Holidays With Your Ex. If you do not have a Parenting Plan, many parents alternate the holidays: one parent has Thanksgiving and the other parent has Christmas Eve and morning. Obviously, this is not a one size fits all recommendation. Some situations or circumstances could make sharing a holiday impossible for some co-parents. If alternating holidays does not work, note these considerations when finding a schedule that works. First, create a schedule that is the most harmonious for your child(ren). Do not argue over transfer times (the difference of 5 or 20 minutes is not worth the fight in the grand scheme of things). Communicate respectfully and clearly because (1) the holiday will be less stressful and more special for your child and (2) you never know if your communication will used in court in the future.
- Centralize Communication. Did you know there are phone applications that were designed with timesharing co-parents in mind? We talked about OurFamilyWizard and Talking Parents in a past blog, which are still two of our favorite apps for co-parents. We thought it would be nice to share a new app, WeParent. This App provides the first 14 days free, secure messaging, calendar sync, and collaborative notes accessible for both parents. Users can add as many family members as they would like, including children above the age of 13, and messages are archivable. Apps like these can help keep communication streamlined and minimize frustration which makes it a lot easier to focus on the well-being of the children and the fun of the holidays!
- Coordinate Presents and Spending Expectations. Once you receive your kid’s holiday wish list, divvy it up! You can go 50/50 on costs or let one person get a high-cost item and let the other parent get the smaller presents. This is not the time to out-Christmas your ex by going over the top with presents. Remember that no matter the amount you spend or the number of gifts you provide, the holidays are tough for kids with two households. What is most important is that your children know you love them with or without enough ribbons and bows to cocoon the coast of Tampa Bay.
- Child Support. A talk about spending expectations for co-parents would not be complete without mentioning child support. Child support should remain the exact same for the holiday season, but there are some important considerations to make. Bank closures or employers taking leave for the holidays may cause a delay in payments. If you are the child support paying parents, stay on top of your pay schedule and amount.
- Take Care of Yourself! The holidays can be hard on parents too! Getting through the holidays after a break-up or divorce can be made easier with a survival guide, but all in all, you have to take care of yourself in order to take care of your family. Whether or not you are able to celebrate important holidays and traditions with your children, self-care is vital for parents this time of year and always. Between decorating, spending, cooking, and entertaining—make sure you set some time aside for yourself. We suggest that you take a moment during the holiday season to schedule at least one day to do an activity that makes YOU happy. Maybe it is a mani-pedi, or a brunch date with friends. Whatever you choose, this time is solely for you. When you refill your proverbial cup, you replenish your energy to pour back into your loved ones.
- Plan Substitute Holidays. Oftentimes holidays focus more on traditions and time with family than a date on the calendar. If you’re open to it, pick a new day on the calendar! Your children will likely barely notice the calendar but will remember the time spent together as a family. Perhaps create a new, but equally fun, tradition. Who says you should not have two Christmas celebrations? If you’re the parent that does not get Christmas Day this year due to timesharing, perhaps an “Elves’ Eve” or “Rudolph’s Day” is your day to celebrate!
The first holiday season after a separation or divorce can be scary and full of unknowns. Even if your holiday celebrations look a little different this year, we promise that you can get through this. The important thing is to keep it fun and loving for the kids while handling the logistics and planning behind the scenes.
The lawyers at McCart and Tesmer can help you sort out many of the complexities of your family’s restructuring, from timesharing and decision making to child support and everything in between. We can help you find ways to ease the discomfort by providing the knowledge and tools necessary for your journey. Proactive co-parenting not only works but can make all the difference in the world by avoiding any unnecessary pitfalls that may come. For further questions regarding parenting plans, holiday timesharing, exchanges, please contact us at McCart & Tesmer, P.A.